Equalizing Parental Leave

The United States is the only developed country that fails to guarantee paid time off work to new parents. As a result, many new parents, particularly low-wage workers, are forced to go back to work within days or weeks of a birth or adoption. In recent years, a growing number of states have passed laws to address this gap in American labor policy, and in December 2019, Congress enacted legislation providing paid parental leave for most federal workers. This Article offers the first detailed analysis of these new laws, and it exposes how their structure—probably unintentionally—disadvantages sole-parent families.

In America, unlike most other countries, leave is provided on a sex-neutral basis as an individual benefit to each parent of a newly-born, newly-adopted, or newly-fostered child. This structure is intended to shift gender norms around caretaking within (different-sex) marriages, but it means that sole-parent families receive only half as much support. This is a significant problem, as forty percent of new mothers in the United States are unmarried. Under state family law, most single mothers—disproportionately poor and working-class women of color—bear sole legal responsibility for the care of their children, and many are functionally parenting on their own. The new laws are an important step forward from the prior baseline of no paid leave, but they shortchange the families that are likely to need them the most.

Prior theoretical and doctrinal assessments of equality in the context of parental leave discuss the relative merits of treating mothers and fathers identically, versus providing “special” supports to mothers. This focus obscures other important considerations, such as whether families or children are treated equally. Additionally, since women are far more likely than men to be single parents, privileging ideals of formal equality in this context has the practical effect of disadvantaging women. Drawing on models used in other countries, this Article proposes that sole parents should be eligible to receive an extended period of benefits or that a broader range of extended or chosen family members should be able to claim benefits to care for a new child. It also suggests that leave policies be structured to provide medical benefits separate from newborn bonding benefits. These changes would not unduly burden businesses, because the financing mechanism for these laws already spreads costs across the tax base. Without these proposed reforms, continued progress in encouraging fathers as well as mothers to take parental leave will further exacerbate the inequality between families with one parent and families with two.